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September 26, 2007

A few of my scholarly thoughts on Rita

I was honored to be asked by students at the Denver University Law Review to contribute my thoughts about the Supreme Court's work in Rita v. United States, and very pleased that the students at DULR were eager to get a special issue on Rita to press before the Court heard Gall and Kimbrough. My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change," is now available at this link.

I will do a number of future posts about my piece and the other terrific pieces that DULR has assembled in short order, but for now let me just provide this snippet from my introduction:

As explained in Part I below, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address. Moreover, as detailed in Part II, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing. Finally, as discussed in Part III, Rita and lower courts’ early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate. This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

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I recently heard a district court judge say that the lower federal courts' rebellion against Booker was unlike anything she had ever seen. I recollect that in the 50's and 60's the response to the Supreme Court's civil rights and criminal procedure cases in some limited regions was similar, but this is different in being so widespread.

Posted by: Dcounsel | Sep 26, 2007 2:51:26 PM

What do you mean by "rebellion against Booker "?

Posted by: Doug B. | Sep 26, 2007 3:54:25 PM

To be clear, "rebellion" is my word, not a judge's, but the meaning was that. The reference was to the unwillingness in cases like Gall and Kimbrough, the subject of the discussion, to treat the guidelines as truly advisory. That is, to the continuing effort to bind sentences to the Guidelines -- in Gall by placing a burden, even an "extraordinay" burden, on the defendant to show why the guidelines shouldn't apply, in Kimbrough to treat a disagreement with the guidelines as "per se" unreasonable.

The Gall-Kimbrough approach is plainly not what making the guidelines advisory and placing section 3553 at the center of sentencing contemplated (as several statements in Rita have since confirmed). But the lower federal courts are in full resistance against the clear meaning of Booker.

The really interesting question is why? One would think judges would want more discretion in doing their job. But perhaps Judge Jose Cabranes and Kate Stith hit the nail on the head a few years ago: "Fear of Judging," I think they called it.

Posted by: Dcounsel | Sep 26, 2007 5:18:40 PM

The "clear meaning in Booker" was not that the guidelines be thrown out, much to the dismay of some the bench and defense bar. Rita has confirmed what Booker stated directly, that the guidelines remain and must be considered thoughtfully. While I know many people just love the idea of pushing the guidelines over the cliff, what happens to parity and fairness across the country? There were two sides to the compromise of the guidelines in the 1980's, the right's view that judges had too much rope, and the left's concern about disparity... too much of this debate negates the real concern about disparity that exists if the guidelines have no purpose or place. Individual defenders have no care for the other defendants out there and academics fail to see the practical application of a world without guidelines. It's all very depressing. Why not support the USSC and Congress in reform, as in the 100 to 1 debate? Why insist on disparity as the rule? It seems to me that too many supporters of this view have a benevolent view of the Federal bench... a view that is at odds with the realities in most districts. What you seem to want is a return to the days when where you were charged means more than what you were charged with. This is not progress.

Posted by: dweedle | Sep 27, 2007 12:44:51 PM

I don't insist on disparity, but neither is there any constitutional need for uniformity. If we really want to solve the VIth Amend. problem -- that's what we want, right? -- which is at the heart of all these cases going back to Apprendi, we would have juries deciding punishment; the thing is, one can walk from one state courtroom to the next, within any jurisdiction anywhere, and get wildly divergent sentences on similar facts.

Posted by: Rob | Sep 29, 2007 9:25:19 PM

I don't insist on disparity, but neither is there any constitutional need for uniformity. If we really want to solve the VIth Amend. problem -- that's what we want, right? -- which is at the heart of all these cases going back to Apprendi, we would have juries deciding punishment; the thing is, one can walk from one state courtroom to the next, within any jurisdiction anywhere, and get wildly divergent sentences on similar facts.

Posted by: Rob | Sep 29, 2007 9:26:24 PM

The Apprendi issue is overstated. Sentences can be delivered under the Sentencing Guidelines without offending the Sixth Amendment. Booker recognized as much.

I certainly don't believe in a presumption of unreasonableness, but sentences that deviate from the Guidelines should be subjected to a heightened -- but still deferential -- form of review.

Posted by: Apprendi Issue Overstated | Oct 2, 2007 10:55:40 AM

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